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ANGELO M. MARIANT/ JR. P.O.

BOX 2481 KAMUELA, HAWATI 96143

Tel: (808) 885-8124 Appellant IN THE ]NTERMEDIATE M, MARIANI, Jr. Plaintiff, VS. )
)

COURT OF APPEALS

STATE OF HAWAII
ANGELO

CIVIL NO'CAAP-11
OPENING BRIEF;

-0000761

) BAC HOME LOANS SERVICING LP ) A rExAS LrMrrED PARTNERSHTP SERVICED BY BANK OF AMERICA ) FKA COUNTRYWIDE HOME LOANS, 1 INC. TX JOHN DOES 1-10; ) JANE DOES 1-10; DOE ) r PARTNERSHIPS 1-10; DOE CORPORATIONS 1-l-0; DOE )

--,tS5HttoFoolBE^l,ltByEHIolfiom
oT. HAWA]I FRoM THE JUDGMENT IN EAVOR OF DEFENDANT BAC HOME LOAN SERVICING LP FKA
COUNTRYWIDE HOME LOANS AND AGAINST ANGELO MARIANT FrLED

6/29/11

RE:64*5263 PUU NANEA ST, KAMUELA,HT 96743 tmk (3)54-023-072-0000 Appellee Defendants

3ffi1iil:-i;l'rftTir'?1,0, ] tH'n' crRCUrr couRr


HONORABLE EL,ZBETH

A.

STRANCE

OPENING BRIEF
APPENDTCES \\A.B.C/'

INDEX

SECTION

PAGE

TABLE OF AUTHORITIES

i.

I.
II.

STATEMENT OF CASE STATEMENT OF POINTS OF ERROR RELIED UPON

pg.8
pg. 15

III. STANDARD OF REVIEW


IV. ARGUMENT

pg.

18

pg. 19

V. CONCLUSION

ps.27

APPENDICES "A-B-C".

Attached

STATEMENT OF RELATED CASES

Attached

TABLE OF AUTHORITIES
PAGE

CASES

Amfac.Inc. v. Waikiki Beachcomber Inv. Co.,


839 P.2d 10,29

n.l1 (Haw. 1992)

18

BAC vUS Bank (Fla.ZdDCA2007)

26

Caribbean v. Thrones,
107

Haw48, 109 P.3d. 689 (Haw. 2005)

18

Carpenter vs. Logan 83 U.S. 271,274 (1872)

20

County of Kauai v. Baptiste,


1

15

Ha. 15, 32, 32P3d. 916, 933 {2007)

2t

Ellis. 55 Haw. 458, 522P.2d 460 (1974), cert. Denied,4l9

11

First Hawaiian Bank v. Weeks, 70 Haw. 392,396, 772P.2d 1187, 1190 (1989) 20

FRANCIS J. BEVILACOUA. THIRD vs. PABLO RODRIGUEZ

460Mass.762 20ll

25

First Insurance Co. v. State, 66 Haw. 413, 665 P.2d

&8 (1983)

20

Fuiimoto v. Au, 95 Hawaf i


116, t36,19 P.3d 699,7t9 (2001)
18

GECC Fin. CorB-y-Iaffarlau,79 Haw. 516, 521, 904P.2d 530, 535 (Haw. Ct. App.),

affd,

80
2T

Haw. 118, 905P.zd624 (1995) (citations omitted)

Hawaii community Federal Credit UnionV. Kea,


94 Haw. 213,221,11 P. 3d 1; (Haw) 2000)

l8

Hulsman v. Hemmeter Development Com.,


65 Haw. 58,647 P.2d7t3 (1982) 20

Hulsman, 65 Haw. at 61, 647 P.2d at 7 16

20

Iuli v. Fasi, 62Haw. 180, 613 P.2d 653 (1980)

2I

Lau v. Bautista, 61 Haw. 144, 598 P.zd 1,61 (1979)

21

Mednick v. Davgy, 87 Haw. 450,457,959

P.2d439,445 QJaw.App. Ct. 1998).

2t

Miller v. Manuel, 9 Haw. App. 56, 65-66,828P.2d286,292


(1 99
1

), cert. der-ried, 72 Haw.

8, 84 1 P.?d

107

5 (1992)

t6

Sakamoto v. Chang. 56 Haw. 447,539 P.2d 1197 (1975)

11

Saop v. Wong. 3 Haw.


State Farm

App. ,

,654 P.2d 883, 885-86, n.3 (1982)

11

MutualAuto. lns. Co. v. Fermahin,


21

73 Haw. 552,555,836 P.2d T074,1076 (1992)

State v.

Zimring, 52Haw. 472,475,479 P.2d202,204 (1970).

21

United Public Workers, AFSCME, Local 646, AFL-CIO v. Yogi,


101

Hawai'i46,62P.3d 189 {2042)


S. Ct. 782,42 L.

2l
11

u.s. 1109.95
U. S.
V.

Ed.2D 805 (1975)

BANK NATIONAL ASSOCIATION,

25

Antonio IBANEZ: 458 Mass. 637, - - N.E. 2D - - - (2011)

STAIUTES

PAGE

Hawaii Revised Statutes: 632.1 HRS Section632-6

21

22

RULES Hawaii Rule of Civil Procedure Rule 15 Rule 56(c) HRCP (1981

PAGE 22
18

TREATISES
55

PAGE
23

Am Jur2d, Mortgage, Section 852.

Moore's Federal Practice P 56.1s[3] at56-249 - 56-250 (Zded.1995)

18

Restatement 3rd on Property Sec. 5.4(c) (1,997):

19

ANGELO M. MARIANI, JR. P.O. BOX 24BL KAMUELA, HAWATT 96743

Tel: (808) 885'8124 Appellant IN THE INTERMEDTATE M. MARIANI , Jr. Plaintiff, Vs. )
)

COURT OF APPEALS

STATE OF HAWAII
ANGELO

CIVIL NO.CAAP-1
OPENTNG BRTEF;

-0000761

) HOME LOANS SERVICTNG LP ) BAC A TEXAS LIMTTED PARTNERSHTP ) SERVICED BY BANK OF AMERICA ) FKA COUNTRYWIDE HOME LOANS, ) INC. TX JOHN DOES 1-10; ) JANE DOES 1-10; DOE ) PARTNERSHIPS 1_10; DOE 1 CORPORATIONS 1-10; DoE ) ENTITIES 1-10 AND DOE ) GOVERNMENTAL UNITS 1*10, RE:64-5253 PUU NANEA ST, KAMUELA, HI 96'7 43 tmk (3 ) 6)

onn"o" To THE INTERMEDIATE AauRi*or-appnals oF THE STATE


HOME LOAN SERVTCTNG LP FKA COUNTRYWTDE HOME LOANS AND AGAINST ANGELO MARIANT FTLED

oT' HAWAII FROM THE JUDGMENT IN FAVOR OF DEEENDANT BAC

6/29/11

,rsrRn CIRCUIT

COURT

HONORABLE ELIZBETH

A.

STRANCE

4-023-072-0000 Appellee Defendants

OPENING BRIEF

I.
STATEMENT OF THE CASE

By that Mortgage and Note dated March 24,

20A6

Appellant Mariani borrowed money from lender Countrywide


Home Loans

Inc. (ExhibitB.-Mortgagelstzpg.);(RoA at p. 27)


dated

Countrywi-de Home Loans Servicing mailed by letter

April 16, 2009 a Notice of Intent to AcceleraLe in regards to Appellant Mariani's loan (Declaratj-on of AngeIo Mariani
att.ached to "Mariani's Memorandum in oppositi-on" filed

5/13/11) (RoA at p. 450 #5) Within that notice it was stated that he (Mariani); "
you may have to acceleration and foreclosure."
...

had the right to bring a court action to assert. ... any defense

(Declaration

of Angelo Mariani) Plaintiff

(ROA

at p. 451 #9)

was next sent a Notice of Mortgagee's Intention

To Foreclose Under Power Of Sale signed Auqrust. 24, 2009. This

Notice stated that Mariani)


(ROA

BAC Home Loans

Servicing, LP was the

mort.qagee for the subject premises, (Declaration of Angelo

at p. 450 #4)

Appellant Mariani read Judge Keith C. Long's decision in U.S. Bank vs. rbanez (08 MISC 384283 (KCL) I 08 MISC 386755
(KCL)October 14th., 20A9) staLing t.hat the party foreclosing on

a mortgage had to establish that it owned the mortgage. (Declaration of Angelo Mariani) (ROA at p. 451 #5)
Judge Long's decision was appealed and the decision on

appeal

is in

US

National Bank Association v. Antonio


Judgelong's decisionwas

Ibanez. . .458Mass.637r- -N.E.2D -- - (2011)


affirmed.

In January / February 2009, Plaj-ntiff

heard and read the

advlce of Congresswoman Marcy Kaptur of Ohio, who advised the


American people of all States that if you were being

foreclosed upon that they should demand t.o see all the proper
documents,

(Declaration of Angelo Mariani) entity held his mortgage Plaintiff

(ROA

at p. 451 #6)

With the above knowledge in mind and not knowlng what filed hls Complaint on
November

13, 2009. (Declaration of Angelo Mariani (Declaration of


Angelo Mariani) (ROA at p, 451 #7)

Appellant Mariani

attached a portion of the fbanez (Declaration of

decision to his Complaint as an exhibit.


Angelo Mariani) (ROA at p, 451 #8)

The CompJainf stated


Home

he was "unsure" if Countrywide

Loan held the mortgage and note and asked for

"proof" that Appellee BAC Home Loans had authority to foreclose. Appellant Mariani asked that t.he note and
mortgage be "be produced and any validly conveyed recorded

assignments of the same documents", Page 3 Complaint;


ROA

at p. 195, #8)
The CompJainf contained three counts for relief;
Count

I, Breach Of Contract; Count II,

Emerqency Temporary And

Permanent Injunctive

Relief and Count fII,

Declaratory

Rellef,

In his prayer for relief Appellant Mariani asked that the Court adjudge; "A, That Defendant BACHLSLP has no lega1 standing or the proper 1ega1 or equitable interests in either the Note or Mortgage to instltute a foreclosure action.
"8, The attempt by
such sale is legally
BACHLSLP

to conducL a foreclosure to t.he buyer at


(ROA

sale under power of sale and transfer tit.le

defective and precluded from at p.

enforcement." (ConpJaizzf filed November 13,2009 149, A-B)

Appellant Mariani sent the Conplaint by certified mail to Roth Crabtree & O1sen, the law firm representing Appellee
BAC Home Loan

in the non-judicial

foreclosure,

It

was received on November 16, 2009.

Appellant Mariani sent the CompJainf by certified mail to Appellee February 2, 2010,
Around January, 2010, Plaintiff was of the belief Fannie Mae (Federal National Mortgagie Association) may have
BAC Home

Loan. It was signed for

on

held his mortgage and learned that mortgages and notes t.hat
had been sold to Fannie Mae could easily be checked on the

Fannie Mae web site,

On January 6, 2010, prior

to the

foreclosure sale of March 5, 2010, Appellant Mariani checked the Fannie Mae web site for the subject premises and found out

Fannie Mae claimed to own hj-s mortgage and loan.

Attached to

Plaintiff/

s Declaration was a copy of a print out from the states,,


"Does Fannie Mae Own Your Mortgage?

Fannie Mae web site dated January 6, 2010,.,It

*** " ...it appears Fannie Mae owns a loan at this address. " (RoA at pp. 452-453 ) (Exhibit C) Appellee judicial
On
BAC Home Loan wenL

forward with the non-

"sale" on March 5, 2010, The premises were deeded


(ROA

to Fannie Mae, the District Division,

at p. 584) in in the
Hamakua

August 9th, 2010, (FNMAE) or (Eannie Mae) filed Court of the Third Circuit Civil NO, Circuit
5RC1 A- 1 -546H.

. . EEDERAL NATIONAL
.

I4ORTGAGE ASSOCIATION

v. Angelo Michael Mariani, Jr, et

al- . -

VERIFIED COMPLAINT EOR EJECTMENT regardi-ng the subject

premises.

Tria1.

On September 13th 2010, Mariani filed

Demand

for Jury

On Nov. 4th, 2010 t.he case was committed to the Third

Circuit

Court and griven a new number "Civi1


NOTICE

- 1 - 403K"

Appellant Mariani asks this court to please

TAKE JUDfCIAL

of this case "Civi1 10-1-405K"

Appellate courts mav take iudicial notice of proceedings having direct rglatio.n to the matter at issue. See Sakamoto v. Chang. 56 Haw.447. 539 P.2d 1197 (1975): ln re Ellis. 55 Haw.458.522 P.2d 460 (1974). cert. denied.419 U.S. 1109.95 S. Ct. 782.42 L. Ed.2d 805
{1975}: Sapo v. Wong. 3 Haw.

App.

. 654 P.2d 883.

88546. n.3 (1982}.

On January 50th, 2A12, Attorney Chrlstopher Roehrlg

representing Mariani filed


To date,

a Motion to Compel Discovery.

(Attorney Christopher Roehrig also assisted with this brief)

claims ownership yet. has refused to respond to requesL for production of documents with reqard In it's memorandum in opposition to said to chain of title, motion FNMAE claims (Marianl's ) at.tempts to "challenge the underlined foreclosure at t.his late date are irrelevant", (pq. 3)
FNMAE

Civil- 10-1-405K is awaiting trial, On April 14, 2A11, Bank of America filed a Motion To Dismiss Mariani's Complaint filed November 15th, 20A9. (ROA at p . 346 ) Bank of America was not a party to the case. Bank of America argued therein that Appellant Mariani's claims: (a, "are moot because the property was foreclosed upon", (b, the Complaint. fails to state a claim against Bank of
Ameri-ca, and that
(

c,

any effort

to amend the Complaint "would be futile" a Motion


Summary

Id. Page 2,,(ROA At p. 347)


On May 2, 2A11, Appellee BAC Home Loans filed

For Judqment On the Pl-eadingrs Or fn The Al-ternative


,Tudgrment

Appeltee

BAC Home Loans

also argued t.hat Appellant


was

Mariani's claims "are moot because the property

forecl-osed against", "Plaintiff the property." effort


(ROA

no longer has an interest to state a claim and any Id. Page 2


no

in

(Memorandum

In Support of Motion Paqe 4)(ROA

at P.353), the Complaint fails at P.547

to amend the Complaint. "would be futile"


)

Other than the original the note or mortqage.


On May

mortqage, movants attached

exhibits showlng that Appellee

BAC Home Loans was assigrned

13, 2A11, Appellant Marj-ani filed hrs

tsIemorandum

fn Opposition Of (l)Defendant Bank Of America [sicl,N.A.ts Motion To Dismiss .FiLed April 14th, 2011; (2)Defendant Bank of America, N.A. rs [sic] Iulotion For Judgrment On The
Pleadingrs Or fn The Al-ternative Summary Judgrment FiJed
lulay

7d, 20ll (RoA at p 442) Appellant Mariani at.t.ached as an Exhibit (ROA at p 453) (Exhibit C of Appendices) to his Declaration a copy of the Eannie Mae website referenced above indicating
Mae held his mortgage and loan.

Fannie

Hearingi was held on said motions on May

23

201 1 , The

Court granted said motions.

The Court. ruled in part that

Appellant Marlani's clai-ms were moot, (re: rranscript May 25, 2oll
Hearingr, Because of cfericaL error, the transcript of said hearing is being prepared by the Court and shoufd be fiJed and uploaded soon. Minutes of that particular hearingr may not exist)

An Order Grantingr Summary Judgrment In Favor Of


DefendanLs was filed

June 15, 2011 and Judgrmenf filed

June

29

201 1 .

Said order does not include any findings of fact


(ROA

or conclusions of }aw.

atpp. 89-90)

Appellant Mariani on July 1, 2011 filed a Motion To Anend ConpJaint To AJLow Quiet TitJe Action. Said Motion
was a
Non
-

hearing motion .

ROA at p.2

A Motion For Reconsjderation, To After, Amend, And/Or For Clarification of Judgrment was filed by Appellant Mariani within 10 days on July 7, 2011, (ROAatp.g6)
The Court never ruled on said motion.

Pursuant to Rule 4(a)(3) Rules of Appellate Procedure of the Court to dispose of the motion within days after the date of the mot j-on constitut.ed a deni-al the failure
.

90

Aooellant Mariani timelv flled his Notice of Aopeal

on

october 17 2011 within 30 days of the denial.

1r.
STATEMENT OF PqTNTS OF ERROR RELIED UPON

POTNT ONE

Error Committed:
The Court Erred When ft Held That plaintiff/AppeIlee

Mariani's Complaint For Declaratory Relief Challenging Defendant/Appellee's Claim To Hold Plaintiff/Appellant Mariani's Mortgaqe and note
Was Moot

After

Defendant/Appe11ee's Alleged Non-Judicial Foreclosure During Litigation: (a. As alleged sale did not resolve any uncertainty regarding what entity held his mortgage and note (b. As BAC Home Loan showed no evidence it held the note
and mortgage and Appellee Mariani showed evidence Fannie
Mae

held his noLe and mortgage; (Exhibit C) Appendices and (c. As the controversy and uncertainty of BAC Home Loans having any right to foreclose continued to exist as does Appel}ant Mariani's inLerests and injury (d. FNMAE, the alleged purchaser at t.he foreclosure sale, filed an Ejectment. Action against Mari-ani regarding
Where

the subject premises,

in the Record Alleqqd Error Occurred

The error occurred;

1, When the court announced its ruling at the hearing on the motions for summary judgment on May 23, 2A11. (re:
Transcript May 25, 20ll Hearing. Because of cJerical" error, the transcript of said hearing is beinq prepared by the Court and shouLd be filed and
upJoaded

soon. Minutes of that particular hearinq nay not exist)

it issued its order Granting summary Judgrment fn Favor Of Defendants on June 15, 2011 and when it f1led its Judgment on June 29, 2A11 (ROAatpp. 89-90) (Exhibit A of 2,
When

Appendices

it. failed to grant Appellee Mariani's lulotion For Reconsideration, To ALter, Anend And/Or For CLarification Of Order Granting Summary Judqmenf f11ed July 5,
When

7, 2011.

(ROA

atp. 96)

Brought to the Attention of the Court '

In the record, the alleged error was objected to or brought to the attention of the court 1. Memorandum fn OPPosition To (RaA at p. 442)
jatl ,'

a)Defendant Bank of Anerica's Motion To Disniss FiJed

ApriJ 14. 20// b) Defendant Bank of America's [sic] Motion For Judgrment on the Pl-eadingrs or rn The Alternative
Judgrment
summary

FiJed May 2, 2011, filed May 13' In opposition")


(ROA

?011

("Memorandum and

atp' 442)
(re:

c) at oral argument on May 23, 2011 on said motions

hearing is Transcript May 23, 20ll Hearingt. BecdDse of ciericai error, the transcript of said Mjnutes of thet particDlar being prepared by the court ancl shauJd be filed and uP.l.oaded saon. hearinq naY not exist)

and

d) zn Appellee Mariani's Motion for Reconsideration, AJter, Anend And/Or For Cl-arification
Summary Judgnenf

To

of Order Grantingr

filed

July 7, 2011. (ROA atp. 96)

POINT

TWO

Error CommitLed:
The Court Erred When it

failed to permit Appellee

Mariani to amend his Complaint and to al1ow a quiet title action after the Court ruled Appellee's claims were moot.
Where in thg Record Alleqed Error Occurred

The error occurred;

1. When t.he Court in its Order Grantinq Summary Judgment In


favor Of Defendants. denied Appellee's request (R at pp. 89-90) for leave to
amend in his complaint contained in his Memorandum In Opposition.

(ROA

at p.

442)

2. When the Court did not rule on Appellee Mariani's Motion To Anend ConpJaint To Al-Jow A Quiet Title

Action, filed July 1, 2011. {ROA at p. 2) Where in the Record the Al-l-eqed Error Was Obiected t.o or Brouqht to the Attention of the Court. (a. Appellee Mariani's Memorandum fn Opposition filed May 15, 2A11 (RAA at p, 442) (b, Motion To Anend CompJaint To Al-Low Quiet TitJe Action filed July 1, 2A11 {AOe at p. 2)

m.
STANDARD OF REVIEW An appellate court reviews an award of summary judgment de Novo under the same standard
applied by the circuit court. Fujimoto

v Au,

95 Hawai'i 116, 136, 19 P.3d 699, 719

Q}AD

(citing Amfac. Inc. v. Waikiki Beachcomber Inv. Co. ,74Hawu'i 85, 104, 839 P.2d 10,22,
reconsiderationdenied, T4Hawar'i650,843P.zd144(1992)).Thiscourtarticulatedthe
standard as follows: and

Hawaii community Federal Credit Union V. Kea, 94 Haw. 213,22I, 1 I P. 3d 1 ; (Haw) 2000);
Caribbean v. Thrones, 107 Haw.48, 109 P.3d. 689 (Haw. 2005)

rv.
ARGUMENT A,

a). ver
me

Burden

r for (I.E.
NOT BAC was

t.he

hen shi

Appellant Marianl. b).


FNMAE

not the holder of the note


)

and mortgage at the time of t.he f oreclosure sale


BAC

could

possiblv sell to

FNMNE

that which

claimed to al-l-egedly be the owner of alreadv.

According to Fannie Mae (who claims ownership of Not.e and Mortgaqe 2 months PRIOR to the alleqed sale on 1/6/10,
( (please

see (Exhibit C, Appendices) ) ,

BAC Home Loans

did

noL

possess eit.her t.he note or the Mortgage on March 5th, 2010, the
dat.e of the alleged non-judicial

foreclosure sale.

This calls int.o question "who owns what, where and when" and raises a Dispute of a Material Fact in the case.
cloud.

be held in order to fo.reclose.


Restatement 3d on Properfy Secti.pn 5.4(p)

(199?:

66A

Mortgage may be

enforced only by and in behalf of a person who is entitled to enforce the obligation the

mortgage secures."

Car?entervs. Logan 83 U.S.271" 274 (1872) "The Note and Mortgage are
inseparable; the former as essential, the latter as an incident. An assignment of the note carries the mortgage with it, while the assignment of the latter alone is a nullity."

Law Regarding Summary Judgment


Summary judgment is a drastic remedy. To avoid improperly depriving aparty to a lawsuit

of the right to atrial on disputed factual issues, summary judgment must be "cautiously

invoked." Miller v. M.anuel, 9 Haw. App. 56' 65-66, 828 P.2d 286,292 (1991), cert'
deniedo 72Eaw.618,841 P.2d 1075 (1992). Summary judgment is proper if the record indicates "that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law."

Rule 56(c) HRCP (1981); First Insurance Co. v. State, 66 Haw. 4L3, 665 P.zd
64S (1983); Hulsman v. Hemmeter Devglopment Corp., 65 Haw. 58,647 P.2d 713 (1982).

"A fact is material if proof of thatfact would have the effect of establishing or refuting one
of the essential elements of a cause of action or defense asserted by the parties."

Hulsman, 65 Haw. at 61,647 P.zd, at 716 (citations omitted). The burden is on the party
moving for summary judgment to show the absence of any genuine issue as to all material
facts, which, under applicable principles of substantive law, entitles the moving party to
J---e

iudement as a maffer of law. FirSt Hawaiian Bank v. Weeks, 70 Haw. 392,396,772P.2d 1187. 1190 (19S9); 6 J. Moore, Moore's Federal Practice P 56.15[3] at56-249 - 56-250 (2d

ed. 1995). The moving party's burden of proof is a stringent one, since the inferences to be drawn from the underlying facts alleged in the relevant materials considered by the court in deciding the motion must be viewed in the light most favorable to the non-moving palty,

State Farm Mutual Auto. Ins. Co. v. Fermahin, T3 Haw. 552, 555,836 P.2d 1074, lA76

(1992); Iuli v. Fasi,62Haw.180,613 P.zd653 (1980); Lau v. Bautista,6l Haw. 144,598


P.2d 161 (1979), and "any doubt concerning the propriety of granting the motion should be

resolved in favor of the non-moving party." GECC Fin. Corp. v. Jaffarian,79 Haw. 516,

521,904 P.2d 530, 535 (Haw. Ct. App.), affd,8O Haw. 118, 905 P.zd624 (1995) (citations

omitted).
a

"[S]ummary judgment should not be granted unless the entire record shows

right to judgment with such clarity as to leave no room for controversy and establishes

affirmatively that the adverse party cannot prevail under any circumstances." State v.
Zimring, 5 2 Haw.
47

2, 47 5, 47 9 P.zd 202,

20

970).

The moving party has the burden of showing that there are no genuine issues of material fact
and that

it is therefore entitled

to judgment as a matter

of

law

Haw. R. Civ. P. 56. "It is only

when the moving party satisfies its initial burden of production, that the burden shift[s] to the

non-moving party to respond to the motion for summary judgment arrd demonstrate specific [material] facts, as opposed to general allegations, that present a genuine issue worthy

of

trial." Mednick

v. Davey, 87 Haw. 450, 457,959 P.2d 439, 445 (Haw. App. Ct. 1998).

ARGU}4ENT B

B. The Complaint for Declaratorv Relief Was Not Moot After


The Allecred Foreclosure Sal-e:

T,aw reoa rcli ncr eontroversi

es over leoaI

riohts

HRS Section 632-6. Provisions, remedial. This chapter is declared to be remedial. Its purpose is to afford relief from the

uncertainty and insecurity attendant upon controversies over legal rightso without requiring one of the parties interested
so

to invade the rights asserted by the other as

to entitle the party to maintain an ordinary action therefor:

It

is to be Iiberally

interpreted and admiristered, with a view to making the courts more serviceable to
the people.

This law (HRS Section 632-6) was entirely overlooked and made Moot by the
courts ruling and granting of Summary Judgment:

(a. As the alleged sale did not resolve any uncertainty regarding what entity held his

mortgage and note:


(b. As BAC Home Loan showed no evidence

it held the note and mortgage and

Appellee Mariani showed evidence Fannie Mae held his note and mortgage; and
(c. As the controversy and uncertainty of BAC Home Loans having any right to

foreclose continued to exist as does Appellant Mariani's interests and injury. (d. FNMAE the alleged purchaser at the foreclosure sale filed an EjectmentAction

against Mariani regarding the subject premises.

Law regarding Declaratory Judgments


Chapter 632Hawui Revised Statutes, Declaratory Judgments, provides in part;

HRS Secti on 632-1. Jurisdictionl controversies subject to. In cases of actual controversy, courts of record, within the scope of their respective jurisdictions, shall have power to make binding adjudications of right, whether or not
consequential relief is, or at the time could be, claimed, and no action or proceeding shall be open to objection on the ground that ajudgment or order merely declaratory of right is prayed for; provided that declaratory relief may not be obtained in any district court, or in

any controversy with respect to taxes, or in any case where a divorce or annulment of marriage

is

sought. Controversies involving the interpretation

of

deeds,

wills,

other

instruments of writing, statutes, municipal ordinances, and other governmental regulations,

may be so determined, and this enumeration does not exclude other instances of actual
antagonistic assertion and denial of right.

Relief by declaratory judgment may be granted in civil cases where an actual


controversy exists between contending parties,

or where the court is

satisfied that

antagonistic claims are present between the parties involved which indicate imminent and

inevitable litigation, or where in any such case the court is satisfled lhat a party asserts a legal relation, status, right, or privilege in which the party has a concrete interest and that

there is a challenge or denial of the asserted relation, status, right, or privilege by an


adversary party who also has or asserts a concrete interest therein, and the court is satisfied

also that a declaratory judgfnent

will

serve to terminate the uncertainty or controversy

giving rise to the proceeding. Where, however, a statute provides a special form of remedy

for a specific type of case, that statutory remedy shall be followed; but the mere fact that an actual or threatened controversy is susceptible of relief through a general common law
remedy, a remedy equitable in nature, or an extraordinary legal remedy, whether such

remedy is recognized or regulated by statute or not, shall not debar

a party from

the

privilege of obtaining a declaratory judgment in any case where the other essentials to such relief are present.

HRS Section 632-6. Provisions, remedial.

This chapter is declared to be remedial. Its purpose is to afford relief from the
uncertainty and insecurity attendant upon controversies over legal rights, without requiring
one of the parties interested so to invade the rights asserted by the other as to entitle the

party to maintain an ordinary action therefor.

It is to be liberally interpreted and

administered, with a view to making the courts more serviceable to the people.

History.

L lgzt, c 162,6; RL 1925,2923; RL 1935, 4225; RL 1945, 9976;RL 1955,228L


1984, c 90,
1

6; HRS 632-6; am imP

"In United Public Workers, AFSCME, Local 646, AFL-CIO v. Yogi, 101 Hawai'i
46,62 p.3d 189 (2002),this court, in deciding that the plaintiffs-appellees/cross-appellants'

claim for declaratory relief was not moot because a substantial controversy remained in the
case, stated:

In the words of HRS $ 632-1, the dispositive question is whether the court is satisfied also that adeclaratory judgment will serve to terminate the uncertainty or controversy giving
rise to the proceeding. This is a question of law. In determining whether parties still retain

sufficient interests and injury as to justify the award of declaratory reiief, the question is
whether the facts alleged, under all circumstances, show that there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and

reality to warrant a declaratory judgment. Id. at 57,62 P.3d at 198 (internal brackets,
quotation markso and citations omitted) (emphasis added)." County of Kauai v. Baptiste,
115

Ha. 15, 32, 32 P3d. 916, 933 (2007)

DEED PASSES NO TITLE.

"When a mortgagee has a right to foreclose, the foreclosure sale passes legal title,
even though the power of sale may have been improperly executed and the sale

consequently voidable in equity. If, however, the foreclosure of a deed of trust is wrongful
because no right to sell exists, the foreclosure sale is

wholly void and the purchaser

acquires no title under

It."

55

Am Jur2d, Mortgage, Section 852.

CASES regardins the validity of foreclosures when the foreclosing entity does not

hold the note or mortgage.

In a January 2011 case, U.S. Bank v. Ibanez, the high court handed back two other
properties to former owners. U.S. BANK NATIONALASSOCIATION. vAntonio

IBANEZ: 458 Mass. 637,- - N.E. 2D - - - (2011)


This case summarized these findings:
Foreclosing entities must possess legal "standing" or the foreclosures run the risk of being

invalidated, voided and overturned.

FRANCIS J. BEVILACQUA" THIRD vs. PABLO RODRIGUEZ


460 Muss. 762

Q01l)
case we must determine whether a

SPINA,

J "In this

plaintiffhas standing to maintain a

try title action under G. L. c. 240, $$ 1-5, where he is in physical possession of real
property but his chain of title rests on a foreclosure sale conducted by someone other than
"the mortgagee or his executors, administrators, successors or assigns." G. L. c. 183, $ 21 (statutory power of sale)." Gg1.)

This case summarized these findings:

1.

A foreclosure conducted by

a non-mortgagee

including the landmark Ibanez case)

is wholly void and passes no title to a subsequent transferee (purchasers foreclosures will be especially pleased to learn of this)

of

Awholly void foreclosure


purchaser
a

deed passes no

title even to

a supposed "bona

fide

The Grantee of an invalid (wholly void) foreclosure deed does not have record title,

nor does any person claiming uuder a wholly void deed, and the decision of the lower land court properly dismissed Bevilacqua's petition.

4.

1.

In hotding that Bevilacqua could not make "something from nothing" (bring an

action or even have standing to bring an action, when he had a title worth nothing) the lower land court applied and upheld long-standing principles of conveyance.

BAC v US Bank (Fla. 2d DCA 2007) summarized says:


"Accordingly because US Bank failed to establish it's status as legal owner of the Note and
Mortgage, the trial court acted prematurely in entering final summary judgment of foreclosure

in favor of U.S. Bank. We therefore reverse the final summary judgment of foreclosure and
remand for flyther proceedings. Reversed and remanded for further proceedings"

ALIENBERND and SILBERMAN,

JJ.,

Concur (Pg 7.)

ARGUMENT C

D.

Mariani had the right t.o amend his complaint,


pafi

Hawaii Rule of Civil Proced_ure Ru/e 15 Amended and supplemenfalp/eadlngs

provides in part; "a

may amend the party's pleading only by leave of court or by

written consent of the advese party; and leave shall be freely given when justice so
requires. "

The order granting motion for summary judgment may result in "issue preclusion" regarding the holder of the mortgage if Mariani cannot litigate a quiet title case...

V.
CONCLUSION

Mariani asks that the order granting summary judgment be reversed and t.his case be remanded to the circuit further hearing, court for

3/ 14/ 12

Mariani Jr.
'AppelIant

STATEMENT OF RELATED CASES:

FEDERAL NATIONAL MORTGAGE ASSOCIATION

v. Anqelo Michael

Mariani, Jr, et.aI. - VERIFIED

COMPLAINT FOR EJECTMENT

regarding the subject Premises. staLus, pendinq. .


.

Appendices

Efibit

A....Order

Exhibit B.... Mortgage (first two pages) Exhibit C.... Page from Fannie Mae's website

ExhibitA.

ffif,BffiY
STARN . O'TOOLE o MARCUS & FISHER A Law Corporation
5083-0 SHARON V. LOVEJOY 8805.0 ANDREW J. LAUTENBACH 9271-A BRANDI J. BI.IEHN 733 Bishop Street, Suite 1900 Pacific Guardian Center, Makai Tower Honolulu, Hawaii 96813 Telephone: (808) 537-61 00

f,-tLID
?$il

JUH

?9
l;

AH

il: 38
0F
l

C.$AliDAL ,i.i.
CIRCLIii
c:j.i

CLERT(
,-

THE

i: "

l.r

'',lUlT i:,

Attorneys for Defendants Bank of Americ4N.A. (erroneously sued as "Bank of America fl<a Country"vgide I{ome Loans, lnc', TX") and BAC Home Loans Servicing, LP
TN

THE CIRCUIT COURT OF THE THIRD CIRCUIT


STATE OF HAWAI'I

ANGELO M. MAzuANI, JR., Plaintiff,


vs.

crvll. No. 09-01-488 K


(Foreclosure)

BAC HOME LOANS SERVICING, LP, a Texas Limited Partnership Serviced by BANK OF AMERICA fka COTINTRYWIDE HOME LOANS, [NC., TX, JOHN DOES 1-10; JANE DOES 1-10; DOE PARTNERSHIPS 1-10; DOE CORPORATIONS 1-10; DOE ENTITIES 1-10; AND DOE

JUDGMENT

) coVERNMENTAL irNirs ST, KAMUELA, HI,) RE:64--5263 PUU NANEA


96743,

i-to;

t \ )
HEARING:
Date:

ROUTH CRABTREE OLSEN, ) 900 Fort Street Mall, Suite 305, Honoluiu, HI i 96813 (808) 532-00e0 - Fax (808) s24-a0ez t
Defendants, ) ) ) ) )

'IMK

13) 6-4-023-072-AAAA

Aftorneys;

Mav 24.2011
I 1:00 a.m. The fr.rnorable Elizabeth A. Strance

Time:
Judge:

ffii'rI'ffi
545167-2

Tfnfisl

XI 'ois f,

iilb,,,16io

corra.,

Clerk,IhirdCirm

f_i,)/ uir{rt

t .-

n'

JUDGMENT
Pursuant to the Order Granting Summa: Judgment in Favor of Defendarufs, entered on
and June 15,2011, judgment is entered in favor of Defendant BAC Home Loans Servicing, LP

Bank of America, N.A. (erroneously sued as

o'Bank

of America fka Countrywide Home Loans,

Inc., TX,,), and against Plaintiff Angelo M. Mariani, Jr. on all claims asserted against Defendants in this action.

All

issues and all claims as to Defendant BAC Home Loans Servicing, LP and Defendant

Bank of America, N.A. (erroneously sued as "Bank of America fka Countrywide Home Loans, judgment pursuant to Inc., TX,,) have been resolved. This Judgment shall be entered as a final
Rule 58 of the Hawai'i Rules of Civil Procedure.

IT IS SO ORDERED AND ADJUDGED this

1fidlL ,F I

dav

of

2011

THE HONORABLE ELIZABETH A. STRANCE Judge of the Above-Entitled Court

Louo,S"Giog;LP'';ciultNo.09-01-488K,ThirdCircuitCour!Stateof Hawai'i;ruDGMENT

Exhibit B.

After Recordation Rerum BY: Mail


COUNTRYWIDE HOME LOANS, INC.

MS SV_79 DOCUMENT PROCESSING

P.O.Box L0423 Van NuYs, CA 914L0-0423


Prepared by:

MICHELI,E

WOO [Space Above This Line For Recording Data]

A63010091

IEscro1.r/Closing

#]

00012697150303005 tDoc ID *l

MORTGAGE 10 00157-00065841
MIN

9-s

DEFINITIONS
and other woids are defined in Sections Words used in multiple sections of this document are defined below
INSTRUMENT |VITH MEHS HAVrrAll-single Family-Fannie Mae/Freddie Mac uNlFoRM Pags 1 oi 15

Q-oa1xl) CONVA/A

(000s).01 cHL (OS/O5Xd) vMP lv'tortsase Solutions' tnc $0q521-72e1

Fafin3a12 1lA1

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DoC
Section 16.

ID #:

00012697150303006

3, 11, 13, 18, 20 and 21. Certain rules regarding the usage of words used in this document are also provided in

(A) "Security Instrument" means this document, which is dated MARCH


with all Riders to this document. (B) "Borrower" is
ANGELO MICHAEL MARIANI

24,

2006

, rogether

JR,

SINGLE

Borrower is the rnortgagor under this Securiry Instrument. (C) "MERS" is Mortgage Electronic Registration Systems, Inc. MERS is a separate corporation that is acting solely as a nominee for Lender and Lender's successors and assigns. MERS is the mortgagee under this Security Instrumenl MERS is organized and existing under the laws of Delaware, and ha.s an address and telephone number of P,O, Box 2026, Flint, MI 48501-2026, tel. (888) 679-MERS. COUNTRYWIDE HOME LOANS, INC. l,ender is a CoRPORATIoN organized and existing under the laws of NEw YORK
Lender's address is

[D) "Lender" is

4500 Park Granada MSN# SVB-314, Calabasas, CA 91302-1,61'3 (E) "Note" means the promissory note signed by Borrower and dated MARCH 24,

2006

The

Note states that Borrower owes Lpnder FOUR HUNDRED TWENTY THOUSAND ANd OO/1OO

plus interest. Borrower has promised to pay this debt in regular Periodic Paymenls and to pay the debt in full not later than APRIL 01, 2035 {F) "Property" means the properfy that is described below under the heading "Transfer of Rights in the

Dollars(U.S.$

420,000.00

Properfy."

(G) "Loan" means the debt evidenced by the Note, plus interest, any prepayment charges and late charges
due under the Note, and all sums due under this Securiry Instrumenl plus interest. ([f) "Riders" means all Riders to this Security Instrument that are executed by Borrower. The following Riders are to be executed by Borrower [check bax as applicable]:

l--l

E grilr", niO* F
vn

aOjurtaUle Rate Rider

Rio"r

[--] I--l

l-l

Condominium ptanned Unit Development Rrder

Rider

giweetly Payment

Rider

! E f l

SeconO Horne Rider

,-o Family Rider Ottre(s) tspecifvl

,'Applicable Law" means all controlling applicable federal, state and local stafutes, regulations, ordinances and administrative rules and orders (that have the effect of law) as well as all applicable final,

(I)

non-appealable judicial opinions'

Dues, Fees, and Assessments" means all dues, fees, assessrnents and other Borrower or the Properry by a condominiurn a.ssociation, homeowners association charges that are imposed on or similar organization. (K) "Electronic Funds Transfer" means any transfer of funds, other than a transaction onginated by check, draft, or similar paper instrument, which is initiated through an electronic terminal, telephonic instrument,

(D "C-ommunity Association

computer, or magnetic lape so

a"s

to order, instruct, or authorize a financial institution to debit or credit an

@.'ol1xt)

/ooos)

01

cHL (08/05)

Page 2 al 15

Form 3012 1/01

Exhibit C.

Does Fannie Mae Own Your Mortgage? Loan

Lookup{ool

Page

of1

,*i, iffi&T
to quickly determine if Fannie Mae owns The Fannie Mae Loan Lookup enables mortgage borroweE code' loan by providing a street address, unit, city, state, and ZIP their
Slreet Address Unit

64-5263 Puu Nanea St


City State
HI

Zip Code'

KAMUELA

-i

96743

I-

* I confim that I am the owner ol lhis property, or have the consent of the owner

to look uP this information

&ia*
Type the two words:

. Required Fields

@fr

liisir:it i:i;ti;;ti
owns a loan at this address Based on the property information entered, it appears Fannie Mae quatify for a Making Home Afiofdable A "Match Found" status doeB nol guarantee ot imply that you will rerinance or modifieation. servicer (the organizalion to lf you'fe inlerested in a refinance, please mntact your mottgage lender or

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Vierv 1:r.,;,;;1r.:;,i:lr;

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Thank you for contmting Fannie Mae

TheFannieMaeLoanLookupisprovidedasaconvenienceforboffovJers.FannieMaemakesno search that represstation, warmnty, or guafantee regarding the accuracy or completeness ot the results. A Home Afisdabla in a "Match Foufld" status dcs not guarantee tr imply that yN will qualify for a Making

results You refinance or modification. lnfomation ihat does not malch our records exactly may retum inaccurate results. contact your mortgage lender to verify these results. should For informalion about the use of our site and our privacy policy, llr'r.:

!'r''i l

2009 Fannie Mae


I

;ilir_tl
!!,.tr
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http //loanlookup. fanniemae' com/loanlookup/


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